To find the office of the prosecutor in charge of putting Islamabad’s bomb builders and terrorist masterminds behind bars, visitors must wend their way through the midday bustle of shoppers and descend into a dingy basement alcove, next to the Valley Tour travel agency.
There, Mohammed Tayyab will confess that he isn’t at all proud of his track record. He has handled 45 cases in the last year. He has won just four.
“It’s very low — I admit it,” Tayyab says, heaving a sigh.
Some of the cases he has lost were infamous terrorist attacks: The truck bombing of the Marriott Hotel that killed more than 50 people in the Pakistani capital in September 2008, and the June 2008 car bombing of the Danish Embassy that killed six people. The latter, Tayyab’s most recent terrorism case, ended in the acquittal this fall of three men charged with helping plan the attack.
It’s not that the prosecutor isn’t aggressive enough or lacks legal acumen. But the cases Tayyab takes on seem doomed from the start. More often than not, they’re based on shoddy police work, and only get to court because of antiquated judicial procedures that don’t allow prosecutors to reject flimsy, poorly investigated cases.
“Our criminal justice system is weak,” Tayyab says. “It’s rubbish and needs a lot of improvement.”
A country pummeled by a continual barrage of suicide bombings, assassinations and militant ambushes needs a well-oiled criminal justice system that keeps terrorists off the streets after they’re nabbed and sends a signal that extremists cannot supplant law and order. Instead, the message Pakistanis get is that when it comes to terrorism cases, criminal justice in their country is hopelessly ineffective.
Legal experts say militants are walking free because police investigators lack basic evidence-gathering techniques to build solid cases. Investigators eager to get terrorism investigations off their desks are also prone to framing Pakistanis on trumped-up charges. More often than not, judges see through the frame-ups and acquit the defendants.
In Punjab, Pakistan’s largest and wealthiest province, nearly three of every four terrorism cases in 2009 and the first six months of this year ended with acquittals, according to provincial court records. And while army offensives have dented militant activity in the restive Swat Valley and parts of the largely ungoverned tribal badlands along the Afghan border, experts say a reliable justice system buttressed by sound police work is essential to a broader containment of terrorism.
“If we don’t get convictions, there will be no end to terrorism,” says Sabah Mohyuddin Khan, a lawyer and former Islamabad judge. “Everyone should be worried about this. Unless killers are convicted, they’ll have a free hand.”
While acts of terrorism typically are complex crimes committed by highly trained, organized militant groups, the police assigned to investigate those crimes lack the sophisticated training to probe such cases.
“It’s like fighting a war in the air with a Cessna,” says former Interior Secretary Ilyas Mohsin. "[The police] do not have the facilities, the training or the equipment.”
Any overhaul of Pakistan’s criminal justice system, legal experts say, should start with a wholesale modernization of the country’s outdated legal code so that prosecutors have more authority over terrorism investigations. Currently, when police submit a weak, flawed terrorism case for prosecution, criminal law in Pakistan does not give prosecutors the discretionary power to reject it.
The Danish Embassy bombing case is an ideal example. Tayyab’s star witnesses were two Islamabad police constables who said they had seen two men in a car signal the car bomber to pull up to the embassy wall. Moments later, the car bomb exploded, blowing a gaping hole in the embassy wall. The men in the car sped off.
No arrests were made until a year later, when three men were charged in Islamabad’s next-door city, Rawalpindi, with murder. The Islamabad constables said when they saw two of those men in a lineup, they identified them as the men who had signaled the embassy bomber.
Even Tayyab acknowledged having doubts about the constables’ claim of remembering the faces of two men they had seen only momentarily a year before. The judge was just as skeptical.
“It was in my mind that it’s unsafe to rely on this,” Tayyab says. “And the judge agreed. He said, ‘It’s unnatural. They had no ample opportunity to note the features of these people. How can you say this is possible?’ ”
Tayyab had a stronger case against two men charged with helping plan and oversee the truck bomb attack on the Marriott, a swanky five-star hotel that is a hub for diplomats and Western businesspeople. The key witnesses were two friends of the men charged. They told investigators they had been with the defendants before the attack and heard the men discussing how they would carry out the bombing.
During the investigation, the witnesses gave recorded statements to a magistrate, which under Pakistani law made the statements admissible in court. But when the case came to trial, the witnesses recanted. In terrorism cases in Pakistan, witnesses often recant once in the courtroom, fearing the defendants’ militant colleagues will track them down.
“They said the police had made them become witnesses, that the statements they made before the magistrate [were the] result of being threatened,” Tayyab says. Though the defendants presented no evidence of duress, the judge accepted their recantations.
In many cases, key witnesses in terrorism cases do not even show up in court, fearing retribution from militant groups. Cases involving sectarian killings in southern Punjab province have stalled for years because witnesses refused to testify or were killed beforehand. Pakistan lacks any kind of protection program to safeguard witnesses in terrorism cases. “We are not that organized,” Mohsin says.
The country’s top judges have taken notice of the rising tide of acquittals in terrorism cases. Spurred by the June 19 acquittal of a man charged in the March 2009 siege on a Lahore police academy, the city’s high court chief justice, Khawaja Muhammad Sharif, said, “It is an alarming state of affairs that a number of accused have been acquitted by trial courts due to defective investigation and lack of sufficient evidence and, as such, failure of the prosecution to prove cases.”
In the Lahore attack, militants armed with automatic rifles, grenades and suicide vests overran the academy and held it for eight hours, killing at least eight recruits and instructors and wounding more than 100 others. The lone man arrested, Hijrat Ullah, was caught at the academy grounds in the midst of the attack, wielding a hand grenade and trying to blow up a helicopter.
Ullah was convicted of possession of a hand grenade and sentenced to 10 years in prison. But citing insufficient evidence, a judge acquitted him in a separate trial on terrorism charges stemming from the attack. Ullah could have received life imprisonment.
Pakistani officials say they do not have the financial resources to train police or buy the forensic equipment needed to adequately investigate and prosecute terrorism cases. But some of those on the judicial front lines counter that the country cannot afford to avoid tackling the problem any longer. Militants continue to strike virtually every week, and the list of terrorism defendants continues to grow.
“To improve,” Tayyab says, “it will take time. The problem is that we have no time.”